Société Comateb (C-192/95), Société Panigua (C-193/95), Société Edouard et fils (C-194/95), Société de distribution de vins et liqueurs (C-195/95), Etablissements André Haan (C-196/95), Société Diffusion générale de quincaillerie (C-197/95), Société Diffusion générale (C-198/95), Société Cama Renault (C-199/95), Scp Ovide et Dorville (C-200/95), Société Ducros Guadeloupe (C-201/95), Société Comptoir commercial Caraïbes (C-202/95), Société Giafa (C-203/95), Société LVS (C-204/95), Société Catherine et Jean-Claude Tabar Nouval (C-205/95), Société L'Heure et L'Or (C-206/95), Société Général bazar bricolage (C-207/95), Société Grain d'or (C-208/95), Société Cash Service (C-209/95), Etablissements Efira (C-210/95), Société Farandole (C-211/95), Société Carat (C-212/95), Société Rio (C-213/95), Société guadeloupéenne de distribution moderne (SGDM) (C-214/95), Martinique automobiles SA (C-215/95), Socovi SARL (C-216/95), Etablissements Gabriel Vangour et Cie SARL (C-217/95), Simat Guadeloupe SARL (C-218/95) v Directeur général des douanes et droits indirects.

• Jurisdiction: European Union
• Celex Number: 61995CC0192
• ECLI: ECLI:EU:C:1996:258
• Docket Number: C-192/95,C-218/95
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 27 June 1996

Important legal notice

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61995C0192

Opinion of Mr Advocate General Tesauro delivered on 27 June 1996. - Société Comateb (C-192/95), Société Panigua (C-193/95), Société Edouard et fils (C-194/95), Société de distribution de vins et liqueurs (C-195/95), Etablissements André Haan (C-196/95), Société Diffusion générale de quincaillerie (C-197/95), Société Diffusion générale (C-198/95), Société Cama Renault (C-199/95), Scp Ovide et Dorville (C-200/95), Société Ducros Guadeloupe (C-201/95), Société Comptoir commercial Caraïbes (C-202/95), Société Giafa (C-203/95), Société LVS (C-204/95), Société Catherine et Jean-Claude Tabar Nouval (C-205/95), Société L'Heure et L'Or (C-206/95), Société Général bazar bricolage (C-207/95), Société Grain d'or (C-208/95), Société Cash Service (C-209/95), Etablissements Efira (C-210/95), Société Farandole (C-211/95), Société Carat (C-212/95), Société Rio (C-213/95), Société guadeloupéenne de distribution moderne (SGDM) (C-214/95), Martinique automobiles SA (C-215/95), Socovi SARL (C-216/95), Etablissements Gabriel Vangour et Cie SARL (C-217/95), Simat Guadeloupe SARL (C-218/95) v Directeur général des douanes et droits indirects. - Reference for a preliminary ruling: Tribunal d'instance de Paris - France. - Dock dues - Recovery of sums unduly paid - Obligation to pass on the charge - Overseas departments. - Joined cases C-192/95 to C-218/95.

European Court reports 1997 Page I-00165

Opinion of the Advocate-General

1 The 27 references for preliminary rulings from the Tribunal d'Instance (District Court), Paris, concerning 27 cases pending before that court, all involving the same question, provide the Court of Justice with an opportunity to enlarge upon some aspects of its case-law concerning the reimbursement of sums unduly paid, especially as regards the scope and effect of the criterion of passing on of the right of individuals to obtain reimbursement of charges unduly levied by the State.

The national court asks the Court of Justice whether the fact that a Member State refuses to reimburse a charge levied in breach of Community law, on the ground that the charge has been passed on to the purchaser, may be regarded as making it virtually impossible or excessively difficult to obtain reimbursement, even though it is the Member State's own legislation which requires the undertaking to incorporate that charge into the cost price of the goods sold.

2 The charge at issue is not unfamiliar to the Court of Justice: it consists in what are known as `dock dues', a financial charge levied in the French overseas departments on goods brought into those territories, regardless of their provenance and origin, which may be another Community Member State, a third country or even a region of France.

It will be remembered that in Legros (1) the Court of Justice deemed the dock dues to be a charge having equivalent effect to a customs duty (paragraphs 10 to 18). However, the effects of that judgment were limited in time (paragraphs 28 to 36), with the result that the incompatibility of those dock dues with the Treaty could not and still cannot be relied upon to support applications for the reimbursement of dues paid before that judgment was delivered, except in the case of those parties which had initiated legal proceedings or raised an equivalent claim before that date.

3 In the subsequent Lancry judgment, (2) the Court of Justice ruled, first, that dock dues, including those levied on goods originating in and coming from other regions of the same State, were incompatible with the Treaty, and, secondly, that Council Decision 89/688/EEC (3) - adopted before the Legros judgment - was invalid in so far as it authorized France to maintain the system of dock dues up to 31 December 1992.

The Court of Justice did not, however, accept the French Government's request that the effects of the judgment should be limited in time. On that point it ruled that: `after 16 July 1992, the date of the Legros judgment, the French Government could not reasonably have continued to believe that the relevant national legislation was in conformity with Community law. Moreover, the interests of the local authorities are adequately protected by the temporal limitation set by the Court in Legros. There is therefore no need to limit the temporal effects of this judgment'. (4)

4 In other words, the limitation in time laid down in Legros applies also to claims for the reimbursement of the sums levied by way of dock dues between the entry into force of the decision of 22 December 1989 and 16 July 1992, the date on which that judgment was delivered. However, even where they were levied after that date, it must be possible for traders to obtain reimbursement of dues paid - provided, of course, the conditions for reimbursement are met.

The disputes that have given rise to these proceedings relate in fact to the reimbursement of dock dues levied after 16 July 1992; the competent national customs authority has refused to make reimbursement on the basis of the relevant provisions of national law, and it is therefore appropriate to describe them here.

5 Article 352a of the Customs Code, as amended by Article 24-II of the Law of 30 December 1986, provides that `where a person has paid domestic duties or charges, levied in accordance with the procedures laid down by this Code, when those duties or charges were not due, that person may obtain reimbursement of such duties or charges, provided that they have not been passed on to the purchaser'.

For the purposes of this case, Article 1 of the Law of 2 July 1963, as amended by Article 32 of the Regulation of 1 December 1986, was also relevant. It provides for penalties (fines ranging from FF 5 000 to FF 100 000) for selling a product at a price lower than the actual purchase price. The actual purchase price is defined as `the price shown on the purchase invoice, with the addition of turnover tax, specific taxes on that sale and, where relevant, the cost of transport'. That means that sales at a loss are prohibited and, consequently, that goods cannot be sold at a price lower than the cost price.

6 I come now to the facts of the case. Comateb and the other plaintiffs in the main proceedings are all companies that have paid dock dues on goods brought into Guadeloupe and coming from other Member States or another part of French territory. Following the Lancry judgment, they applied for reimbursement of the sums unduly paid to the customs authority between 17 July and 31 December 1992. The director of the customs authority contends that the dock dues at issue cannot be reimbursed, in accordance with Article 352a of the Customs Code, because they have been passed on to the purchaser.

Called upon to resolve that dispute, the Tribunal d'Instance, Paris, deemed it necessary to refer to the Court of Justice a question for a preliminary ruling relating to each of the cases pending before it. It asks essentially whether the refusal to reimburse a charge levied in breach of Community law, on the ground that the charge has been passed on to the purchaser of the goods, even though it is the Member State's own legislation which requires undertakings to incorporate the charge into the cost price of the goods sold, must be deemed to make it virtually impossible or excessively difficult to obtain reimbursement.

7 It is helpful to make clear at this point that in the order for reference the national court states categorically that `the dock dues at issue were passed on to the purchasers'. It also points out in that connection that the undertakings themselves have not disputed that the dock dues were in fact passed on to the purchasers of the goods.

The fact that French law requires the taxpayer to incorporate the charge in dispute in the purchase price of the materials needed for its business, and therefore subsequently in the cost price of the goods sold, in fact implies, in the view of the referring court, that that law `provides for dock dues to be levied by way of input tax, without any possibility of subsequent deduction since, unlike VAT, they are not separately itemized on invoices, and requires them to be passed on, which requirement the fiscal authorities rely upon in challenging reimbursement'. The national court thus concludes that `French legislation has apparently established a system whereby dock dues are to be passed on, and therefore not reimbursed'.

8 Putting the issue in those terms, that is to say assuming that the charge levied in breach of Community law has subsequently been passed on, means that it remains to be established whether the fact that the charge was passed on extinguishes the right to reimbursement of the sums unduly paid or whether, bearing in mind the particular features of this case, such a system is incompatible with Community law simply because it makes it virtually impossible to obtain reimbursement of sums unduly levied by the authorities.

The French Government and the Commission, however, submitted in their observations - and confirmed at the hearing - that the obligation to incorporate the dock dues into the cost price does not in fact imply, or at any rate does not necessarily imply, that they have actually been passed on to the purchasers of the goods. (5) That is essentially because an undertaking might well choose, for reasons of marketing strategy, to reduce its profit margin rather than pass on the charge.

That...